Lawsuit over Seeley timber sale reveals split among environmental groups -Missoulian

Thanks to Terry Seyden for this contribution

Lawsuit over Seeley timber sale reveals split among environmental groups

By ROB CHANEY of the Missoulian | Posted: Tuesday, September 20, 2011 6:15 am | (3) Comments

A lawsuit challenging a timber sale north of Seeley Lake shows either the U.S. Forest Service can’t follow the law or some environmental groups can’t agree to work together.

The Alliance for the Wild Rockies, Friends of the Wild Swan, Montana Ecosystem Defense Council and Native Ecosystems Council all sued the Forest Service over the Colt Summit Forest Restoration and Fuels Reduction Project on Friday.
The project would thin trees and remove roads on more than 4,000 acres between Lake Alva and Summit Lake along Montana Highway 83.

The lawsuit has angered members of several groups who support a collaborative effort to achieve both commercial logging and habitat restoration in the Seeley-Swan area. The Colt Summit was one of the tests of the Montana Forest Restoration Committee’s ability to move forward without legal challenges.

“I tend to be on the side of the coin where, if you bring a lot of people who don’t think a lot alike and take time to learn about the projects, we collectively can come up with better ideas,” said Anne Dahl of the Swan Ecosystem Center, one of the project’s supporters. “I think the Friends of the Wild Swan and others are more leery of collaboration. There’s sort of a fundamental philosophy where we’re different.”

“There’s no provision in there that says if 80 percent of the people sign off on it, they don’t have to follow the law,” responded Michael Garrity of Alliance for the Wild Rockies. “They have to show it’s benefiting wildlife.”
The project affects 4,330 acres in an area known to be a major wildlife corridor. About 740 acres would be logged and thinned, including 137 acres of old-growth forest. Another 1,216 acres would have the understory cleared and burned. In some areas, 19 acres would be clearcut to improve visitors’ views of the Swan Mountain Range and 69 acres would get “shelterwood patch cuts” that mimic forest openings.

The Forest Service would decommission 4.1 miles of road, turning a stretch of the Colt Summit Road into a snowmobile trail. Another 5.1 miles would be reconstructed and linked into the snowmobile network. After the five-year project is over, 28.4 miles of temporary and winter-haul roads would be decommissioned.
For weed control, crews would spray herbicide on 34 miles of roads in the area, as well as all logging and other work areas.
The area is also prime habitat for grizzly bear, lynx and bull trout. Dahl said in her tours of the project, she believed the changes would benefit threatened and endangered species.
***
But the lawsuit alleges the Forest Service failed to take those animals’ needs into account when it planned the project.
Sara Jane Johnson was a Forest Service wildlife biologist before she became director of the Native Ecosystem Council. In a statement, she argued that removing beetle-killed trees hurt habitat more than helped it, because it took away nesting areas and cover used by everything from woodpeckers to lynx and grizzly.
The lawsuit also argues the Forest Service was supposed to perform a full environmental impact statement and evaluate how it fares under the National Forest Management Act and National Environmental Policy Act.
“Why do we win 85 percent of our lawsuits?” Garrity asked rhetorically. “We sued the Forest Service more than any other environmental group in the country and we won more than any other group. We raise the same issue every time they log on grizzly bear habitat because they have the same problem.”
University of Montana College of Forestry and Conservation Dean Jim Burchfield was part of the Lolo Restoration Committee and reviewed the Colt Summit project for inclusion in the Southwest Crown of the Continent Collaborative Forest Landscape Restoration Project proposal. That was one of 10 forest stewardship projects nationwide to receive funding from Congress last year.
“In my view, the Colt Summit project is about seeing how people with very different views of management priorities can come up with a project,” Burchfield said. “To fight the timber wars over every single timber sale is really counterproductive to the interests of most Montanans. There was an effort to be very careful in the development of that sale. They were looking at the most controversial areas and making sure all the laws and regulations were adhered to.”
Garrity disagrees.
“On this timber sale, we haven’t had a worse timber sale meeting,” he said. “They didn’t listen to anything we said. They just told us, ‘We’re fully funded on this and we’re pushing forward.’ ”
“There were other ones up there, and we didn’t oppose them,” Garrity continued. “One other sale was more in the urban interface, and we want them to do thinning near homes, not in critical lynx habitat. Over on the Flathead (National Forest), there’s a timber sale that adjoins this one. The boundaries touch, but they didn’t analyze for cumulative impacts. That’s one of the things they’re required to do.”

My question is with regard to this quote from Michael Garrity “There’s no provision in there that says if 80 percent of the people sign off on it, they don’t have to follow the law,” responded Michael Garrity of Alliance for the Wild Rockies. “They have to show it’s benefiting wildlife.” Does every action have to “show it’s benefiting wildlife?” is that a legal requirement?

26 Comments

  1. Without knowing the specifics of this project, I would say that, if the FS presents it as a wildlife habitat improvement project, then yes, they should show how it will benefit wildlife. The letter of the law is one thing, living up to the intent of “healthy forests” treatments is another.

    In my area (Summit County, Colorado), the problem I have is that many (not all) of the clear-cutting projects that have been approved were shoe-horned in WUI treatments, even though some of the clear-cutting is as far away as you can get from an at-risk neighborhood or from critical infrastructure. Some of the projects clearly were approved simply because they were in the most accessible places for logging – not because they are going to reduce the risk to any specific homes or subdivisions.

    The analogy is, you should do what you say you’re going to do. Right now, the FS has a lot of community support for needed forest treatments, but they could lose that buy-in if they’re not straightforward about the intent of the work.

    Better to say, “If we can include this easily accessible parcel A, it will make the sale more attractive financially to the timber cutters and the mill, and that will enable us to treat this less profitable, but more critical, parcel B.”

    • Bob, it’s really hard to understand that people in Colorado are setting up sales to just to feed our mill that’s in foreclosure that’s so far away from your county, and when the supply of dead lodgepole off private land seems limitless, plus those people will pay you to take it away. Maybe we could talk about specific sales and then check to see what the local folks’ rationale is for those?

  2. Let’s check the documentation of the project, it can be found here.:

    From the decision notice:

    Land management activities in this decision include:
    • Commercial (34%) and non-commercial (66%) vegetation management on approximately 2,038 acres to improve forest health, maintain or improve wildlife habitat, provide for scenic vistas, and reduce fuels;
    • Restore 4 miles of streamside road, retaining a trail and relocating the access to a less impactful route with Swan Mountain vistas using existing prisms, and the construction of 0.3 miles and reconstruction of 5.1 miles of road;
    • Implementing road best management practices (BMPs) where necessary;
    • Brush as needed and winter haul on approximately 13.1 miles of road;
    • Construct 2.1 miles of temporary and snow roads;
    • Decommission or store 28.4 miles of road;
    • Replace one and remove a second aquatic barrier culvert, thereby opening 0.6 miles of upstream habitat for salmonid species; and
    • Conduct ground-based noxious weed herbicide treatments along approximately 34 miles of National Forest System (NFS) roads, 6 acres of existing infestations within units, and disturbed soil such as landings.
    • The 80 resource protection measures and planned monitoring, which are integral parts of this restorative proposed action, avoid or minimize environmental harm.

    • It sounds to me as if a deal were carefully crafted, but it was blown up by others, which is exactly the kind of thing people have complained about in this blog. Why collaborate when others can litigate? So far folks have asserted that some of the treatments are illegal, but assertions and proving your case are two different things.

      • In response to your question regarding why folks should collaborate when projects still get litigated by others, I would day there is a lot to be gained by the collaborative process even though some projects are still litigated. From 1998-2002 I was staff attorney with the Alliance for the Wild Rockies, and some of my perspective is still informed by my experiences during those years. Having said that, I realize it has been a long time since I’ve been actively involved in the world of litigation, but I have remained very much involved in FS issues over the years through a variety of capacities.

        First, every time citizens with differing view points come together to find a mutually agreed upon solution, they are creating a common frame of mind, and this is the core of what builds our communities. In other words, it is not the proximity of our homes alone, but also a common understanding and respect of our perspectives that creates the real value of our communities. Through collaboration. we each expand our community of interests and thereby strengthen the community as a whole. But the real value of collaboration is in the process itself (when its done right), for it doesn’t ask us to abandon our diversity. Instead, it uses the diversity of the group to “raise the bar” on the quality of the decisions that flow from the process.

        I think the frustration folks involved in collaboration feel when a project is litigated comes from an expectation that unless there is an absence of litigation, that the collaboration has failed. I would ask instead for folks to consider what their community would be like in the absence of collaboration, and measure that assessment against the strength of their community with the presence of the collaborative effort in tact.

        Second, and on a related note, as Michael Garrity points out in the article you posted, there are some projects that are not litigated, and I would suggest this is in part because the litigants realize they must “choose their battles” wisely. Like all of us, the litigants in this case evaluate the overall picture before proceeding in a decided direction. IN the present case, this evaluation includes a legal, environmental AND social perspective. Despite opinions to the contrary, litigants DO look at the social costs involved when they choose to litigate, and they are not oblivious to the consequences of choosing to litigate on a given project. Thus, when they do choose to litigate, it is because they perceive the legal and environmental consequences of not litigating outweigh the social cost of litigation. The fact that the project in question is a part of a larger collaborative effort “raises the bar” on the social side of the equation. One might even speculate that, but for the growing community collaboration efforts in the Seeley-Swan and elsewhere, additional projects may have already been litigated. Its hard to measure exactly, but my sense is that is makes a difference.

        • Mike, thank you for such a well-written and helpful explanation of the decision to litigate. Your comment added a great deal to our discussion.

          Let me be clearer about what I meant. I am talking about feelings of people and investment of time. I wasn’t implying that collaboration is not a good idea.

          Suppose that there is a low level of trust among some people about “environmental groups” in a certain community, and they work with some members of those groups and give in on numerous things in order to strike an agreement (and some groups ask for more and more and more every time someone makes a concession, not naming names here). At the end of the day these people may feel like they have given and given and given, in terms of doing a deal that everyone can buy off on.

          So when the litigation hits, you think “why did I make all those concessions if they were not going to be enough? Was that a big waste of time? Could I have been volunteering at a food kitchen or writing a book instead?”

          And if you really don’t trust you could think, “they may be in collusion with those groups and not negotiating in good faith at all.” NOTE: here I am not talking about the Seeley Lake, I don’t have any experience like that. I have had other experiences, though, with other projects.

          • Hi Sharon,

            Yes, I hear you. I know it is really hard to feel as tough you’ve put so much time and energy into an effort, only to end with the sense that it was all for nothing. Let me start, in reference to your most recent question, that the absolute core of true collaboration is trust. IN other words, the strength of trust amongst all the group members will determine the strength of the collaboration. In my view, real collaboration is extremely rare and most of the time what the groups are practicing is a less formal form of negotiation, and this is more than just semantics.

            In a legal setting, negotiation has strict rules and boundaries that are followed, usually with some sort of mediation. The reason why most lawsuits are settled through some kind of negotiated settlement is because people see this as a better alternative than a drawn out lawsuit process. Importantly, however, the parties enter into the process with a mutual understanding that they do not trust the other side to begin with. In that situation, every involved knows that if the talks break down they are going back into litigation, and this is usually enough motivation to stay at the table and negotiate until they find a resolution. I believe the issue you are raising comes about when groups see themselves as collaborating when they are in fact entering into attempts at negotiation.

            Having said all of that, in most instances the line between collaboration and negotiation is blurred and often dependent by the quality of relationship between each party at the table. In other words, there be elements of collaboration (i.e. high levels of trust) between some parties and not others, all within the same group process.

            For example, for a couple of years following my work with the Alliance fore the Wild Rockies, I was a “liaison” between the Lolo NF and some of the environmental groups in Missoula. During that time we had monthly or bi-monthly meetings during which we engaged in a conversations that I would describe as more “visionary” in nature. Rather than getting into the weeds on one project or another, we simple discussed what each of us would like to see or not see on the Forest and what values motivated each of us each day. During that same period, there were at least two lawsuits pending on the Lolo, and the plaintiffs in those cases were also in our discussions as part of the Missoula community.

            From the beginning it was clear to everyone that we would simply agree to disagree on the lawsuits, while proceeding forward on other issues wherever we could. Among several other benefits from these discussions (and field trips), there came an understanding that if one of the “litigants” was going to file a lawsuit on a given project, that they would provide an advanced notice to the Forest, thereby diminishing the negative affect the legal action had on the otherwise growing and positive relationships between the Forest staff and the plaintiffs.

            In my view, while there was still most often on-going attempts to “negotiate” at the project level, there was also a collaborative effort happening at a much broader level during that time. Moreover, in my experience, the collaborative effort did have a positive affect on the broad “community of interest” concerning Lolo NF management, and that this reduced the potential for litigation on the forest as a whole. This positive effect was perhaps exemplified by the partnership that grew between the Lolo NF, Superior RD and Wild West Institute (formerly Native Forest Network) in which the Forest and the group collaborated on a project to reduce forest fuels in and around the community of Superior. There are other examples but that one sticks out most for me.

            I think the bottom line is that it is all about managing expectations and knowing whether you are negotiating or truly collaborating. Sorry for the really long message…

            • I really appreciate Mike sharing his thoughts here and reflecting on his time spent as a “liaison” on the Lolo National Forest. Mike is relaying an important part of the story here that, unfortunately, has become completely lost in the current narrative regarding timber sales on federal public lands in Montana.

              The current narrative is largely dominated by a handful of timber mill managers and a handful of conservation groups, who, by and large, have never really worked on federal forest policy issues related to the timber sale program. Certainly not in the context of looking over timber sale EA/EIS/CE’s and offering substantive comments and following through with appeals and litigation if the Forest Service fails to follow NEPA, NFMA, Forest Plans, etc. So the notion that some of these folks came to an agreement with the timber industry and the agency means what exactly? That’s a serious question.

              And, of course, this current narrative is also being constructed in the context of an upcoming 2012 Senate election between Senator Jon Tester (with his mandated logging bill, the Forest Jobs and Recreation Act) and Rep Denny Rehberg. Senator Tester wants desperately for his FJRA to be passed into law, in hopes that he can glean timber votes from Rehberg. Since it appears as if the Senate won’t let that happen, except perhaps by an undemocratic legislative rider, Senator Tester, his staff and the “collaborators” who are part his FJRA have decided to also to tout projects like Colt Summit on the Lolo or East Deerlodge Valley on the Beaverhead Deerlodge National Forest as a model of the type of projects that would be done under FJRA. The simple truth is that this lawsuit on the Colt Summit project upsets that apple cart and might just take a photo opportunity and canned campaign press event away from Senator Tester, his staff and the “collaborators” during the upcoming election year. I could provide many more examples of this dynamic at work currently in Montana, but suffice to say, politics and the upcoming Senate election Tester vs. Rehberg is driving much of this. What a great way to manage America’s federal public lands, eh?
              Tester

            • Oh, and just one small correction to Mike’s comment:

              “This positive effect was perhaps exemplified by the partnership that grew between the Lolo NF, Superior RD and Wild West Institute (formerly Native Forest Network) in which the Forest and the group collaborated on a project to reduce forest fuels in and around the community of Superior. There are other examples but that one sticks out most for me.”

              The project Mike is referring was actually around the communities of DeBoriga, Haugan, Saltese and Hendersonville on the Western part of Mineral County, Montana. Of course, this effort was largely ignored by the Montana media, as again, it didn’t fit into the narrative, which apparently people want to believe no matter what.

              Here’s some more information about the DeBorgia work:

              http://nativeforest.org/pdf/DeBorgia.pdf

              http://salsa.democracyinaction.org/o/1537/blog/comments.jsp?blog_entry_KEY=22765&t=

      • I didn’t mean to imply that collaboration is a bad thing. The worst thing about it is that it tells the litigators where they are weak in their legal strategy. And, that’s fine with me. Some things are better left outside the courts. Collaboration is probably our best vehicle of scientific understanding, and it should not be discouraged, at all. I would be in favor of requiring potential litigants to participate in the collaboration, in good faith, with the goal of keeping the project out of the courts.

        Obviously, there is a lot going on behind the scenes but, I’m rooting for the conservationists, whoever they may be. Preservationism is a tough-sell, these days, trying to convince America that wildfires are beneficial and that vast, unbroken, dead forests are natural. There will be no consensus about those issues, in a general sense. There may be consensus on an individual project, though.

  3. Here is a copy of the press release….Regarding the question “Does every action have to “show it’s benefiting wildlife?” is that a legal requirement?”

    Note this quote from Mike Garrity:

    “The Endangered Species Act and the National Forest Management Act only lets the Forest Service log grizzly bear, lynx and bull trout Critical Habitat if they can show there is benefit to wildlife. One of the few benefits the Forest Service came up with after they waste $1.5 million dollars on this timber sale is the increased vistas people will have when the trees are cut down if they drive on the new logging roads.”

    Press Release
    September 18, 2011

    Contact: Michael Garrity, Executive Director
    Alliance for the Wild Rockies 406-459-5936
    Arlene Montgomery, Friends of the Wild Swan 406-886-2011

    Conservation Groups File Lawsuit to Stop Logging and Road
    Building in Lynx, Grizzly Bear and Bull Trout Critical Habitat

    Seeley Lake, MT – Four conservation groups, the Friends
    of the Wild Swan, Alliance for the Wild Rockies, Native
    Ecosystems Council, and Montana Ecosystems Defense Council
    filed a lawsuit Friday against the U.S. Forest Service to
    stop the Colt Summit Timber Sale on the Lolo National
    Forest, approximately 10 miles north of Seeley Lake, MT.

    “This is the yet another example of the Forest Service
    trying to push money-losing, illegal logging in endangered
    species habitat while short-cutting legally-mandated
    environmental reviews,” said Michael Garrity,
    Executive Director of the Alliance for the Wild
    Rockies. “It’s hard to believe that, as Congress
    struggles with deficit reduction, the Forest Service
    estimates it will lose $1.5 million of taxpayers’ money on
    this timber sale during a period in which market demand is
    at record low levels.”

    The timber sale authorizes 2,038 acres of logging,
    slashing, burning and new road construction in mature,
    dense, and old growth forest that violate the stands in
    Montana’s Seeley Swan Valley. “This area is a in a
    biologically-rich area of the Lolo National that includes
    occupied grizzly habitat, federally-designated
    Critical Habitat for lynx, and federally-designated Critical
    Habitat for bull trout. Simply put, the agency
    hasn’t done its homework on how these species will be
    affected by the proposed activities.”

    As Garrity explained: “The Endangered Species Act and the
    National Forest Management Act only lets the Forest Service
    log grizzly bear, lynx and bull trout Critical Habitat if
    they can show there is benefit to wildlife. One of the
    few benefits the Forest Service came up with after they
    waste $1.5 million dollars on this timber sale is the
    increased vistas people will have when the trees are cut
    down if they drive on the new logging roads.”
    Arlene Montgomery, Program Director for Friends of the Wild
    Swan said: “The timber sale logs in a key wildlife linkage
    corridor between two major wilderness areas for lynx and
    grizzly bear. The Forest Service calls this a ‘restoration
    project,’ but it will actually result in degradation of
    important fish and wildlife habitat, which isn’t
    restoration.”

    Sara Jane Johnson, PhD., is a former Forest Service
    wildlife biologist and Director of the co-Plaintiff Native
    Ecosystem Council. She explained the importance of old
    growth, snag retention, and the interconnectedness of
    species in the area. “The Forest Service wants the
    public to believe that trees killed by beetles need to be
    removed in order to have a healthy forest. But nothing could
    be further from the truth,” Johnson says.
    “Wildlife and beetles go together. A forest with
    beetle-killed trees is a healthy forest. The beetles
    provide food for woodpeckers. When woodpeckers are in the
    forest, they drill holes in trees for nesting cavities. When
    woodpeckers are done using these holes, they’re used by
    many other birds that can’t drill out their own nesting
    holes. When the dead trees fall, they provide cover
    and habitat for snowshoe hares and squirrels, which in turn
    are eaten by pine marten, lynx, goshawks and great gray
    owls. The downed trees
    also provide important cover for big game, lynx and
    grizzly bears. All these species can thank the beetles
    for providing them habitat.”

    Garrity says they have taken part in every step of the
    administrative process in an attempt to remedy the flaws in
    the logging proposal, but that the agency simply refused to
    listen to the best available science. “It’s
    unfortunate that we have to take the Forest Service to court
    to force them to follow the law, including their own Forest
    Plan,” Garrity concluded. “At this point, however,
    we have no other choice if we want to conserve the last
    remaining habitat for bull trout, grizzly bears, lynx and
    other old growth dependent wildlife.”

    • Maybe someone can help me, but does ESA say you can’t do anything unless it improves habitat? Isn’t it good enough to maintain habitat? I know NFMA doesn’t.

      Also, it is hard for me to accept that (having returned from a trip to Alaska and driving through Colorado, Wyoming and Montana, Alberta, BC and Alaska), that these 2300 acres are the “last remaining habitat for bull trout grizzly bears lynx and other old growth dependent wildlife” as Garrity asserts. I don’t know what “science” Garrity was talking about but I seriously doubt that “science” would tell you that. I also think there are probably a lot of dead trees for habitat elsewhere than the 2300 acres.

      In terms of roadbuilding, note that the projects

      Constructs 2.1 miles of temporary and snow roads;
      • Decommission or store 28.4 miles of road;

      So Garrity says: “increased vistas people will have when the trees are cut
      down if they drive on the new logging roads.”

      I know that when you are an advocate, you must tell only your own side, and you will shade it to make it as palatable as possible. But that tone of “the collaborators were bad/misinformed if they agreed to that” has natural consequences in terms of relationships with collaborators and others.

  4. Also, please note that many of the “Land management activities in this decision” will not be accomplished at any point in the near future due to a lack of funding. Of course, all the logging will be completed, but most of the true restoration work (decommissioning of roads, culverts, etc) will only be completed as funding becomes available, which in our experience here in the N. Rockies might take a decade, if the work ever is completed at all. The public and the media would be wise to recognize the difference between simply signing a Decision Notice vs. actual completion of the work. Unfortunately, despite repeated requests to look into this matter, the media (and the Forest Service) continues to give the public the impression that all this work gets completed within a reasonable amount of time. That’s totally not true. In fact, I bet if someone did a comprehensive look at all the Stewardship Projects in USFS Region 1 over the last decade they’d be shocked at the amount of promised, yet unfinished, restoration work.

  5. Sharon: In critical habitat the legal requirement is that the Forest Service has to show that any logging will benefit lynx or bull trout. With grizzly bears, if there is a conflict between logging in MS 1 grizzly bear habitat the Forest Service has to rule in favor of the bear.

    It’s also worth noting that, to my recollection, the Swan Ecosystem Center has never publicly opposed any national forest timber sale, no matter how bad the timber sale. The same can be said of the Montana Wilderness Association and many of these other so-called “collaborators.”

    Apparently the fact that this Colt Summit timber sale would log old-growth forests, clearcut parts of the forest to improve the view and would log within habitat for lynx and grizzly bears, and also log within critical habitat for bull trout and lynx isn’t much of a concern to the Swan Ecosystem Center, MWA and the other “collaborators.”

    That’s all well and good and these “collaborators” are certainly entitled to their own opinions on that; however, these federal public lands belong equally to all American’s and, fortunately, some folks are willing to speak up and take action to protect old-growth forests and critical habitat for threatened and endangered species.

    This isn’t so much a case of this particular timber sale revealing a split among environmental groups, as the Missoulian story claims. Rather, the real story here is how this is an example of how some groups always opt for the “go-along-to-get-along” strategy with the Forest Service and logging industry, while other groups are willing to hold the Forest Service accountable, make sure the federal government follows the law and ensure that management activities are based on the best science and protect important resources like old-growth forests and wildlife habitat for threatened and endangered species.

    Also, I hate to say it, but Anne Dahl, Jim Burchfield and others at the Lolo Restoration Committee are illusory about the diversity of views represented in the Lolo Restoration Committee. Pulling together some self-selected group of people who already have very little conflict and are willing to “go-along-to-get-along” and calling it a mega diverse group and a wonderful achievement is a pretty big stretch. Larry/Foto makes the point that the litigators should be required to participate in these collaborative groups, but the fact with the Lolo Restoration Committee and the MT Forest Restoration Committee is that the self-selective people who head these collaborative groups have largely prevented anyone who doesn’t basically agree already to be part of these groups.

    In fact, we’ve been hearing from a number of the members of the Lolo Restoration Committee (including two local logging/restoration contractors) who are pretty much fed up with the Forest Service and logging industry based on their experience trying to work together in this collaborative over the past few years. It remains to be seen if these frustrations will be publicly vetted, but rest assured, not even everyone in these collaborative groups agrees with these projects. They really just see the Forest Service and logging industry engaged in business as usual, with the added bonus and cover of some collaboration rhetoric.

    Again, these public lands belong to everyone, not just those “collaborators” who are willing to “go-along-to-get-along.”

    • Matthew,
      Sorry for the slow response..

      You said
      “In critical habitat the legal requirement is that the Forest Service has to show that any logging will benefit lynx or bull trout. With grizzly bears, if there is a conflict between logging in MS 1 grizzly bear habitat the Forest Service has to rule in favor of the bear.”

      So this was too much shorthand for me and I asked around for more explanation. I hope that this is helpful for any students reading this blog.
      This is my restatement, hopefully accurate, if not please point it out.

      Critical habitat is defined in the ESA as areas that are essential to conservation of the species and require special management considerations or protection. Critical habitat is designated through a rule-making process just like the species listing process. They are supposed to be done together, but often that is not the case for many reasons such as: the species was listed before the ESA was amended to add the critical habitat provisions; there isn’t enough time to get through all the steps on a critical habitat proposal and designation (such as an economic impact analysis); litigation; etc.

      Once designated, federal agencies have to consult on the effects of federal actions on the critical habitat to ensure that the critical habitat is not adversely modified (parallel to the requirement that we do not jeopardize the species). Agencies do have an affirmative responsibility to conserve listed species, but there is no requirement that every action must be beneficial.

      Critical habitat has not been designated for the grizzly bear. The reference to MS-1 is alluding to the 1986 Interagency Grizzly Bear Guidelines, which set up a system of 5 Management Situations within grizzly bear recovery areas and guidelines for each regarding habitat mgt and how to handle grizzly bear/human conflicts. Most of the forest plans incorporated the IGBGs. In MS-1 the grizzly bear is prioritized.
      In the Northern and Southern Rockies Lynx Amendment decisions, the Forest Service can proceed with WUI treatments in lynx habitat, recognizing that there will be adverse effects from doing this. FWS in their Biological Opinions concluded that allowing this could lead to incidental take of lynx, and provided the Forest Service with authorization of that take within a capped limit (in the Southern Rockies this is 3% of the lynx habitat on a national forest). This level would affect individual lynx but not jeopardize the species.

      Matthew, do you agree with the above as a more basic explanation of what you said? Also, couldn’t the project amend the forest plan to take care of your NFMA concern on the grizzly bear (maybe it does, I didn’t check)?

      You said “Apparently the fact that this Colt Summit timber sale would log old-growth forests, clearcut parts of the forest to improve the view and would log within habitat for lynx and grizzly bears, and also log within critical habitat for bull trout and lynx isn’t much of a concern to the Swan Ecosystem Center, MWA and the other “collaborators.””
      I’d like to explore further..
      Do you disagree with the purpose and need?

      The reasons for proposing treatments within the project area are to:
      • Restore forest health by increasing species diversity and stand heterogeneity (which restores habitat for grizzly bears and other species).
      • Restore grizzly bear, bull trout, and aquatic and riparian habitat on Colt Creek by decommissioning Road 646 and rerouting the primary access to the area.
      • Reduce hazardous fuels in the wildland-urban interface.

      Do you disagree with any of the below proposed treatments? Why?
      (from the modified EA)
      Proposed forest vegetation treatments would include (figure 3 and table 1):
      • Improvement cut (commercial thinning) and underburn; 597 acres
      • Irregular-shaped, shelterwood patch cuts and understory slashing and burn; 69 acres
      • Vista cuts; 19 acres
      • Understory slashing and prescribed fire; 1216 acres
      • Old-growth enhancement and underburn; 17 acres
      • Old-growth slashing and prescribed fire; 120 acres

      For those of you interested, I recommend Table 1 on page 4 of the Addendum to the EA that describes the changes between the proposed action and the modified proposed action, that appears to have changed substantially to address environmentalists’ concerns.

      For others’ info, here are some quotes from the affirmation of the decision:

      Wildlife
      The majority of comments on the original EA were related to wildlife. There were several comments concerning grizzly bears. I have reviewed the wildlife biologist’s biological assessment, his detailed consideration of Forest Plan standards related to management in MA 20 (EA, p. 64; Wildlife report, p. 38 to 40), his response to public comments, and the USFWS’s letter concurring that effects to grizzly bear and lynx would be insignificant.

      On May 19, 2011 the Western Environmental Law Center sent a 60 Day Notice of Intent (NOI) to Sue for Violations of Section 7 of the Endangered Species Act.
      Following review of the NOI, on July 19th the USDA Forest Service and US Fish and Wildlife Service (USFWS) sent a joint letter to the Western Environmental Law Center stating that the agencies have jointly reviewed the Colt Summit Restoration and Fuels Reduction Project Record and Biological Assessment, and the USFWS’s Concurrence relative to the eleven points addressed in the NOI. We find that the analysis completed for the project was sufficient to support the determination of “not likely to adversely affect” for lynx and grizzly bears and that consultation for the project complied with all requirements of Section 7 of the Endangered Species Act.

      Questions related to effects to management indicator species, northern goshawk, elk, and pileated woodpeckers were also raised. In reviewing the project record I conclude that the wildlife biologist provided evidence that these species are using the project area, conducted habitat analysis including consideration of habitat quantity and quality at the project and forest level for context, and analyzed the impacts of the project.s actions. He provided evidence of consistency with Forest Plan standards and monitoring requirements. His determination that there is sufficient habitat available to support species requirements is scientifically based and logically presented.

      Forest Vegetation
      Many of the comments related to forest vegetation seemed to be based either on a misconception that large trees are targeted for removal in this project, and/or a lack of trust in our intentions. Ranger Tim Love has provided field trips to interested parties to show them areas that we have treated on the Lolo National Forest similarly to the planned treatments in Colt Summit. These field visits reveal that the treatments are NOT targeting the older, larger diameter trees for removal. To the contrary, as explained throughout the EA, the Silviculturist’s report and the project record, the older, larger diameter trees will specifically be left post treatment. What is being proposed is density management. Currently the stands proposed for treatment are over dense relative to the historic levels of density. At current levels the existing trees are susceptible to mortality from insects and disease. Relative density is being used as an indicator of stand health. As defined on page 6 of the EA “Stands that have relative densities (RD) equal to or greater than 50 percent are assumed to be experiencing competition-based mortality (Reineke 1933). Current average RDs for the project area range from 53 to 65 percent meaning they are within a “zone of imminent mortality” (Oliver and Uzoh 1997) in which competition for site resources is so great that for some trees to live and grow larger, other trees have to die (Reineke 1933).”

      Reduction of stand density in an effort to increase the vigor of the residual trees as a measure against insects and disease is very well documented; (Amman, 1989; Anhold and Long, 1996; Cole et al, 1983; Waring and Pitman,1985) to name just a few.

      Fire and Fuels

      Some of the concerns raised regarding fire and fuels were based on the belief that we are trying to “°fire proof” the area and exclude natural fire from the National Forest. Fire proofing is not an objective of the project. Reducing the potential severity of fires when they do occur within this wildland urban interface is desirable and analysis shows the modified proposed action will help to modify fire behavior.

      Matthew, you said above:

      some folks are willing to speak up and take action to protect old-growth forests and critical habitat for threatened and endangered species.

      So what treatments do you specifically think would have negative impacts? Do you disagree with the FWS on the species question? If so, what is your line of reasoning?

    • I have to laugh at your use of the word “collaborators”, with all its bad historical connotations. I was once called a “low-down, dirty compromiser” pushing for consensus and marginalizing the extremists. Sharon’s response with project’s specs seems like the Forest Service’s standard responses to those controversial issues. It looks like it is going to be a battle in court of “our scientists versus your scientists”, regarding impacts to endangered species. Instead of true collaboration, consensus and compromise (like I have been saying all along). There will always be at least one litigious eco-group to stand up to the Forest Service’s overconfidence in new legal wishes. If intent were measured in court, the Forest Service would win easily. Instead, they must follow the laws…. wherever they may be deemed to hide.

  6. Sharon: Thanks for your questions here. I am, however, only the messenger. My group didn’t file the Colt Summit lawsuit, nor did my group have much, if any, involvement in this project.

    Your questions would be much better directed at the leaders of the groups who filed the lawsuit: Alliance for Wild Rockies, Friends of the Wild Swan, Montana Ecosystem Defense Council and Native Ecosystem Council.

    In the meantime, here is a pdf copy of the actual lawsuit, which I do believe may help answer many of the questions you have posed here.

    http://www.courthousenews.com/2011/09/19/Logging%20in%20Grizzly%20Land.pdf

  7. Sorry, Matthew, I assumed that your quotes meant you agreed with them, and they are not available to ask questions of on this blog as far as I know.

    I always find legal material difficult to read. Cases follow the plot line- you are not following the laws the way we interpret them because…. and you need to do more analysis. Analyze this and analyze that until you come up with the correct answer. That’s why I like objections better than appeals; people say “I think you should not cut trees over 15 inches” or something concrete. I can’t actually get that from this document. What don’t they like about this project? What do they think should be changed?

    Those are the kinds of discussions that happen in collaborative processes, as well. It is a different conversation to say “Our biologist feels that the grizzly will be harmed by the 1216 acres of prescribed burning” than “you are violating NEPA. NFMA and ESA.” The conversation is fundamentally different because the experts are local people and biologists understand the grizzlies in the area and the habitat context.

    If the conversation is about violating laws, the experts are lawyers. Choosing to battle through lawsuits (as opposed to other negotiations) and what battlefield (courts)is a decision that clearly empowers some people at the expense of others.

  8. Sharon, Don’t self-selective, exclusive “collaborative” groups also “clearly empower some people at the expense of others.” Or is that dynamic just reserved for the US Federal Court System?

    The groups who filed the lawsuit all have very public websites, with contact information clearly presented. If you want to ask a question of the plantiffs, I’d suggest that avenue. Also, like I already said, some of your questions may be answered by reading the actual court brief, linked above. Thanks.

    • Unwillingness to compromise would certainly be a good reason for exclusion from a collaborative group. However, there MUST also be a seat at the table for other “self-selective, exclusive “collaborative” groups” to present their own rigid preservationist points of view. It should be made very clear what the “preferred decision” is for each participant, so there can be no “bait and switch”. Definitions should also be agreed upon before talks start.

      • Foto- I have had that experience that every time we agreed to something (I will call them “group x”) wanted, the next time they wanted more. They got lost in their own rhetoric and when asked why their last comments were not now still their position, they didn’t seem to have receptors for that information. But anyone could look at a history of their comments and see how the ante was upped each time. This doesn’t work to build trust. But I don’t think this group really cares about relationships and trust, and I don’t really understand why not.

    • Matthew, now I don’t know about “exclusive” collaborative groups. I know most start out by inviting everyone, and meetings tend to be public.

      I do know about litigation settlements. They tend to be private, with few at the table, and only those who can hire lawyers.

      I did read the court brief (originally I just scanned it) and I found many assertions of the project being bad for wildlife species and how more analysis needs to be done. I didn’t get an answer to my question “what specifically don’t you want to happen on the land and what is your reasoning?” I know they want more documentation but that really doesn’t help.

      Maybe Mike can help here, but I don’t think groups litigate just because they feel the need to spent time and money, paper and printer ink, on telling the FS the need for more documentation. There must be something there. I will send them an email and ask these questions, as you suggest.

  9. Matthew, help!

    I can find an address for Alliance for the Wild Rockies (awr@wildrockiesalliance.org) and Friends of the Wild Swan (arlene@wildswan.org) but could only find a link to Earthjustice in Bozeman for Montana Ecosystem Council (??) and I could only find lawsuits when I googled Native Ecosystems Council.

  10. OK- here is the note I sent to AWR and FWS..

    Dear Alliance for the Wild Rockies and Friends of the Wild Swan,

    I administer a blog called New Century of Forest Planning. We have been following the litigation on the Colt Summit Timber Sale with some interest. We would be interested in finding out exactly what changes could be made to the sale such that you would support it enough not to litigate. Could you explain what activities you want to stop in what units and why?

    Thank you!

    Sharon Friedman

  11. Sharon,

    This premise is absurd, and Colt Summit is a symptom of systematic disfunction at the highest levels of the federal government.

    First, conservationists conserve forests, or should at least pretend to conserve something. I know this is “extremist” behavior in today’s bazarre political climate. Logging is not conservation. Logging in a designated grizzly bear Management Area and linkage corridor is beyond suspect.

    Second, conservationists don’t design timber sales, “collaborators” do. There is not a “split” in the movement, just a misunderstanding about what is perceived, incorrectly, to be similar missions. Collaborators protect Baucus and Tester, conservationists conserve forests, water and wildlife habitat.

    Montana is a colony. Baucus is its divine monarch. Help the extremists replace Baucus, and the possibilities are endless. Otherwise, nothing will change, except possibly more riders.

  12. Pine- Colt Summit, is in my opinion, the result of a group of people getting together and trying to determine what is best for an area considering the many needs and values.

    I am just trying to figure out, specifically, what is so reprehensible about this project. It sounds like the idea is to cut some trees so the others have more room to grow, and might not be as susceptible to MPB.

    There are also fuel treatment areas. Would grizzlies rather have a thinned living stand or a burned over area where there isn’t much cover? I think I’m channeling Foto here for a moment, but I don’t believe that doing nothing is always the best for wildlife and water. Neither do our Colorado water providers based on their own real-world experience.

    I can’t comment on Montana politics.

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